Abortion is a safe medical procedure, yet half of Australian women may have difficulty accessing a termination because they live in states and territories that designate it a crime.
Since then, some states and territories have reformed or decriminalised abortion, while others continue to restrict women’s access to abortion in a way entirely inappropriate for the 21st century.
Abortion laws in Australia are all state or territory laws. The Commonwealth is only responsible for the oversight of drugs for medical abortion through the Therapeutic Goods Administration.
Queensland law remains little changed from the 1899 Criminal Code which contains the same wording as the 1861 English Act. Any person who carries out, or assists with, an abortion may be liable to criminal prosecution, including the woman herself.
Any defence hinges on the interpretation of the “surgical operations and medical treatment” defence in section 282 of the Code.
In the 1986 case R v Bayliss, which interprets sections 282 of the criminal code, Justice McGuire found that “in exceptional cases” an abortion would not be unlawful where it was carried out in good faith to avoid “serious danger to the mother’s life or her physical or mental health (not merely the normal dangers of pregnancy and childbirth) which the continuation of the pregnancy would entail”.
In 2009-10, a Cairns couple was charged under the Queensland legislation. Although they were acquitted after a jury trial, they were subject to 18 months of glaring negative publicity.